Suspension becoming illegal dismissal

Can a preventive suspension of an employee amount to a constructive dismissal? This is the question answered in this case of Dencio.

Dencio was a regular employee of a mining company (MMC) who started out as mill mechanic in the maintenance department and later on promoted as foreman I. On April 11, 1996, Dencio failed to attend the meeting called by his supervisor as he was then supervising the workers under him. Such failure however was construed as insubordination so that he was placed under preventive suspension on the same day. He was not likewise allowed to report for work the following day and the days thereafter.

It was only on May 12, 1996 when he was served with a Notice of Infraction and Proposed Dismissal to enable him to present his side. On May 15, 1996, he submitted to the personnel department his written reply to the notice. No action was done by MMC until June 5, 1996 when a grievance meeting was held upon Dencio’s request. In that meeting Dencio once more explained why he failed to attend the meeting held on April 11, 1996. He maintained that he had not committed any offense and that his service record would show his efficiency.

On July 23, 1996, when MMC had not yet lifted his suspension nor allowed him to return to work, Dencio already filed with the NLRC a complaint for illegal dismissal and payment of moral and exemplary damages and attorney’s fees. MMC however insisted that Dencio was not dismissed but merely suspended preventively. Citing Valdez vs, NLRC (G.R. 125028, Feb. 9,1998, 286 SCRA 87) MMC contended that constructive dismissal occurs only after the lapse of more than six months from the time an employee is placed on a floating status as a result of temporary preventive suspension from employment. Since Dencio’s suspension was less than six months, His suspension was legal, MMC went to argue. Was MMC correct?

No. The Rules are explicit that preventive suspension is justified where the employee’s continued employment poses a serious and imminent threat to the life or property of the employer or of the employee’s co-worker. Without this kind of threat, preventive suspension is not proper. Moreover no preventive suspension shall last longer than 30 days (Sections 8 and 9, Rule XXIII Book V of the Labor Code’s Implementing Rules).

In this case, Dencio was suspended only because he failed to attend a meeting called by his supervisor. Such failure did not prejudice his employer because he was even supervising the workers under him. Neither did his presence in the company premises pose a serious threat to his employer and co-workers. The preventive suspension was clearly unjustified.

What is more, Dencio’s suspension persisted beyond 30 days. From the time he was placed under suspension on April 11, 1996 up to the time a grievance meeting was conducted on June 5, 1996, 55 days had already passed. Another 48 days went by before he filed a complaint for illegal dismissal on July 23, 1996. Thus at the time he filed the complaint he had already been suspended for 103 days.

Dencio’s employment may not have been actually terminated in the sense that he was not served his walking papers but there is no doubt that he was constructively dismissed as he was forced to quit because continued employment was rendered impossible, unreasonable or unlikely by MMC’s act of preventing him from reporting for work.

The case of Valdez vs. NLRC supra, is not applicable here. The legal basis of said ruling is the principle underlying Article 286 of the Labor Code which provides that the bona fide suspension of the business operation or undertaking of a company not exceeding 6 months shall not terminate employment. This case involves the preventive suspension of an employee not by reason of suspension of the business operations of the employer but because of the employee’s failure to attend a meeting. The allowable suspension in such a case is only 30 days as provided by the implementing rules. So Dencio was illegally dismissed and should be reinstated with payment of back wages and attorney’s fees (Maricalum Mining Corporation vs. Decorion, G.R. 158637, April 12, 2006).

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